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Amber Myers, Staff Attorney

Texas Justice Court Training Center

Webinar – September 2019

Code of Criminal Procedure (CCP)

www.tjctc.org – Deskbooks, forms, and other resources

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The defendant fails to appear and:

✓ The defendant was arrested and released on bond (a bail bond or a personal bond)

OR

✓ The justice court required the defendant to post an appearance bond and the court issued a written summons to appear to the defendant.

WHEN IS BAIL FORFEITURE AN

OPTION?

22.01 CCP

▪ A court may require a defendant to post a bond securing their appearance at trial▪ In justice court, this MUST be a personal bond initially

▪ Defendant can’t be required to put up cash up front or use a surety

Code of Criminal Procedure 45.016

▪ If the defendant does not appear as required by their personal bond, the court can require the defendant to post a bail bond.▪ Must find that defendant is able to post a bail bond

▪ Must be necessary to order to secure the defendant’s appearance

Code of Criminal Procedure 45.016

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Step 1:

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ENSURE THAT THE DEFENDANT

IS ABSENTCCP 22.02

▪The bailiff, judge, or clerk must call the defendant’s name at the courthouse door

▪ If the defendant fails to answer “within a reasonable time after such call is made,” the justice court may initiate bail forfeiture proceedings.

▪How long is a “reasonable time?”▪ It depends on the facts of the case, but it

is more than being three to five minutes late. Meador v. State,

Step 2:

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“An action by the state to

forfeit a bail bond under this chapter must be

brought not later than the

fourth anniversary of

the date the principal fails to

appear in court.”

▪Proceedings begin when the court generates a judgment nisi

▪A judgment nisi is NOT a final judgment.

▪ The literal meaning of “judgment nisi” is “judgment unless.”

▪ It is a preliminary judgment that will become final if the defendant does not appear and show cause why it should not be made final.

Int’l Fid. Ins. Co. v. State, 71 S.W.3d 894, 896 n.1 (Tex. App. – Texarkana 2002, no pet.)(quoting Black’s Law Dictionary 1068 (7th ed. 1999)).

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▪The judgment nisi should be styled:State of Texas vs. [name of the defendant] and [name of the bail bondsman/surety]

▪Shall state the amount owed based on the forfeiture (bond amount)

▪Shall state the judgment will be made final unless there is good cause for the defendant’s failure to appear

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Step 3:

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▪When a forfeiture has been declared upon a bond, the court or clerk shall docket the case on the scire facias docket or on the civil docket

▪ “Scire facias” means “to be made known” so this just refers to a show cause proceeding; the defendant must “show cause” why the judgment nisi should not be made final.

▪The proceedings are governed by the same rules as other civil suits

Step 4:

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ISSUE A CAPIASCCP 23.05

▪“If forfeiture of bail is declared by a court…a capias shall be immediately issued for the arrest of the defendant.”

▪The court may require the defendant to post a cash bond in order to be released from custody following an arrest based on a capias issued as the result of a bond forfeiture

Step 5:

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ISSUANCE OF CITATIONCCP 22.04

▪The citation should be issued just as it would in any civil case

▪Shall notify the parties cited to appear and show cause why the judgment of forfeiture should not be made final

▪Attached to the citation should be: ▪ A copy of the judgment of forfeiture entered by the court

▪ A copy of the forfeited bond

▪ A copy of any power of attorney (originally attached to the forfeited bond)

Step 6:

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▪ The surety is entitled to service (can be waived)

▪ A surety who is an individual shall be served at the address shown on the face of the bond or at their last known address

▪ A surety that is a corporation or other entity shall be served through the attorney designated for service of process designated under Chapter 804 of the Insurance Code

SERVICE OF CITATIONCCP 22.05

▪Shall be served on parties as in a civil case▪Time to serve

▪Manner of service

▪Officer to execute a return

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SERVICE OF CITATION

CCP 22.035

▪If a defendant posted a cash bond, they shall be served with citation at the address on the face of the bond or their last known address

The principal shall be served if:

The bond forfeited was a cash bond; or

The defendant “has furnished his address on the bond.”

Service of citation is by mail

CCP states that it is otherwise not necessary, but BEST PRACTICE is to always serve both the surety and the principal

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▪The prosecutor can request a citation by publication in writing if surety cannot be found ▪ Cost is paid by the county

▪Can serve someone out-of-state by “any person competent to make oath of the fact” ▪ Affidavit of return is still necessary

Step 7:

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ANSWERCCP 22.11 & 22.15

▪The surety in a bond forfeiture proceeding may answer, “within the time limited for answering in other civil actions.”▪ Justice Court – 14 days following

service of citation

▪When the surety has been duly cited and fails to answer and the principal also fails to answer, the court shall enter a default judgment

Step 8:

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IS THE DEFENDANT LIABLE?

▪The Surety claims the principal did not appear in court due to “car trouble.”

▪ Is the defendant liable?

▪What kind of information would you want to know?

DEFENSESCCP 22.13

▪The following are defenses to bail forfeiture cases:

▪ The bond was invalid/illegal;

▪ The principal did not appear due to death;

▪ Sickness or “uncontrollable circumstance” prevented the principal’s appearance;

▪ No complaint or citation was presented before the forfeiture; or

▪ The principal was incarcerated at the time of forfeiture

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A surety may request a jury trial, and it would be made in the same manner as other civil trials.

JURY TRIAL?

TRIAL CCP 22.125

▪After a judicial declaration of forfeiture is entered, the court may proceed with trial

▪The court may:▪ Exonerate the defendant and his

sureties

▪ Remit the amount of the forfeiture

▪ Set aside the forfeiture only as expressly provided in this chapter

▪ Approve any proposed settlement agreed to by the state and the defendant or defendant’s sureties

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▪After forfeiture but prior to final judgment

▪Court SHALL remit if:▪ Principal released on new bail or the underlying case the bond was

given on is dismissed

▪ Surety files a written motion seeking bond amount back

▪Court MAY remit all or pert of the bond amount if:▪ Good cause shown

▪Deducted from amount remitted:

▪Costs of court

▪Any reasonable and necessary costs to the court for the return of the principal

▪The interest accrued on the bond amount▪ Interest accrues on the bond amount from the date of forfeiture in

the same manner and at the same rate as provided for the accrual of prejudgment interest in civil cases

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Step 9:

FINAL JUDGMENTCCP 22.14

▪ If the defendant(s) are exonerated (have a valid defense) by the evidence presented at trial, the justice court should issue a final judgment on behalf of the defendant(s).

▪ If the defendant(s) are not exonerated (do not have a valid defense) by the evidence presented at trial, the court should issue a final judgment on behalf of the state in the amount of the bond forfeited.

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Step 10:

▪ If the defendant fails to pay the amount owed, a prosecutor representing the state may request a writ of execution

▪“Separate executions shall issue against each party (principal and surety) for the amount adjudged against him.”

▪The costs shall be equally divided between the sureties, if there is more than one.

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APPEAL

▪Final judgment for bail forfeiture can be appealed

▪The surety, as the party aggrieved by judgment of bail bond forfeiture is the “defendant” and can appeal

City of Dallas v. Smith, 716 S.W.2d 114 (1986)

▪ Two (2) years after final judgment

▪ Surety may file a “special bill of review”

▪ May include a request that the final judgment be reformed and all or part of the bond amount be remitted to the surety (excluding costs of court, any reasonable costs to the county of the return of the principal, and the interest accrued on the bond amount from the date of forfeiture).

▪ The court in its discretion may grant or deny the bill in whole or in part

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